Kaplan Kirsch & Rockwell represents clients throughout the country in complex land use and zoning matters. Our clients in these matters include real estate development firms, local governments, airports, community organizations and individual and corporate landowners affected by local and state zoning and land use decisions. The issues that arise in our land use and zoning practice cover a wide spectrum, including:
- Advising on comprehensive land use, transportation and other master planning documents for local governments.
- Providing land use due diligence for developers, lenders and investors on potential acquisitions, loans and investments.
- Advising on land use and entitlement issues in purchase and sale transactions and documents.
- Drafting and revising legislation, findings, staff reports and related documents.
- Advising on affordable housing requirements and agreements.
- Advising public entities, developers and investors in Colorado on issues associated with special districts, urban renewal authorities and downtown development authorities.
- Preparing and negotiating intergovernmental agreements.
- Drafting subdivision agreements, vested rights agreements, and other agreements for local governments and developers.
The guiding framework for local land use regulations in most jurisdictions is the comprehensive or master plan. Local governments look to their comprehensive plans to guide them in addressing local land use issues, including: linking land use and transportation planning, incorporating design review, implementing affordable housing requirements and other issues. As a result many local governments have been taking obsolete, vague and out-of-date comprehensive plans and turning them into more detailed and current policy-oriented documents.
We work with many local governments and planning consultants across the country on these types of comprehensive planning revisions. Our lawyers have extensive experience with the current tools that are implemented through comprehensive plans, including transferable development rights, design review processes, affordable housing, ways to connect land use and transportation planning, growth management, and related issues. We also understand the importance of meaningful public participation in developing these plans and have worked with clients and other consultants in developing and implementing comprehensive public participation processes.
Processing entitlements for a major land development can involve extensive negotiations among governmental entities, private developers and interested neighborhood, environmental and others. Lawyers must understand and be comfortable with the legal requirements related to the entitlement process as well as the political arena in which entitlements are processed and approved. In addition, strategic planning is essential to successfully concluding the entitlement process.
We maintain an active regional and national practice in land use and entitlements law to help clients meet the legal and political challenges facing large- and small-scale projects. As legal counsel to both landowners and governmental entities, we help clients navigate the entitlement maze, anticipate potential problems, understand the interconnection among different entitlement processes, and obtain approvals through local governmental entities, such as planning commissions and City Councils.
At the start of a project we advise clients during the due diligence process to identify and describe entitlement requirements, processes and risks and incorporate the results of our analysis into transaction documents. We often prepare due diligence and entitlements memoranda for use by developers, lenders and investors.
We also assist clients in developing a comprehensive strategy for projects where there is an interplay of zoning and other land use and development issues. Clients frequently ask us to develop strategic plans for addressing the range of legal issues that arise in connection with a land use undertaking — plans that are then implemented in cooperation with in-house counsel or counsel with specialized local expertise.
The zoning and land use matters we handle address a variety of issues and matters. In zoning, we have drafted ordinances for many municipal clients and advised private sector clients on zoning ordinances and requirements. Our team has successfully tackled legal issues as diverse as historic preservation law, constitutional authority of municipalities, federal environmental protection requirements, federal preemption, complex environmental remediation issues and problems of national security.
Successful development projects often require private agreements involving governmental entities, private developers, regulatory agencies, neighborhood groups and other special interests. While these agreements are similar to private contracts, they take on a different character in the land use arena because they are often negotiated in public and must sometimes be approved by local governmental entities. When entering into these agreements, local governments must be careful to meet their legal requirements related to issues such as improper delegation of authority and contracting away police powers.
We have extensive experience negotiating and drafting many types of these agreements, including:
- Comprehensive intergovernmental agreements between two or more governmental entities.
- Master development agreements between public entities and private developers related to large scale redevelopment projects, including agreements that involve special district or tax increment financing.
- Subdivision improvements agreements and other agreements related to infrastructure construction.
- Development agreements ensuring the availability of vested development rights.
- Agreements between developers and local governments related to affordable housing and other issues.
- Agreements between developers and neighborhood organizations.